It's not as simple as you finding my hand in this here cookie jar. Sure it may look like I'm trying to steal a cookie, but really I'm just making sure there are, in fact, cookies in here, in case you know... I need to go to the store and get more cookies for later. Yeah...

Congress should quit trying to blame this on the FISA court. The problems people are most upset about aren't there because the court isn't rejecting bad applications for court orders and warrants, they are because those court orders and warrants are allowed under current law.

The secrecy involved in the FISA court not only makes public review possible, it makes them a convenient scapegoat for congressmen that are more interested in pointing fingers than addressing issues.

The court who rules in secret, that you can't audit the rulings of, and is not beholden to the people, is completely acting withing the laws of a country supposedly governed by the consent of the governed who the majority of are against the existence of a secret court that makes secret rulings upon the permissiveness of monitoring its society?

Oh, you mean it's the fact that we're a moderately elastic surface, in the shape of "APPROVED" and kept inked 24/7/365 that matters, rather than pointless quibbling about materials? Well, um, never mind.

Next you'll tell me that 'metadata' are actually pretty informative, that 'extraordinary rendition' might actuall be 'kidnapping' or 'disappearance', and that 'enhanced interrogation' is 'torture'....

It would still be a bunch of jesters holding their meetings in secret, without any proper supervision, rubber-stamping (or not) decisions based upon legislation that is quite likely to be unconstitutional.

Aside from the maddening secrecy, and concerning the term "court"...

David Walker, The Oxford companion to law wrote:

"... A court is a tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law. ..."

What dispute? What parties? Who argues the case of these subjects of surveillance?

N.B.: Putting a judge on a random bench in a random park in a random American town does not make said town a court. This is like me shoving a buffalo wing in my pant pocket and claiming that I am now a chicken. Preposterous doesn't even come close.

It should be noted, however, that these statistics are an attempt to measure the results of what are, typically, informal communications between the branches.

So they're talking out of court about the decision and in a completely non-adversarial proceeding. Wouldn't that basically be grounds for instant dismissal of any court order in any other court?

I don't get the "non adversarial" bit. These court orders are in the league of warrants and warrants aren't adversarial as far as I know. I'm not a lawyer, but it seems to me that getting upset on this technical point is coming close tilting at windmills when there are real giants to hunt. Namely:the NSA has repeatedly obfuscated and told us 'less than correct' information (if not flat out lied) about its scope of collection and who has access to what.

I was going to suggest that it's the NSA standard for "might be equal to". For example, "After hundreds of hours of surveillance and research, we are 100% confident that the suspect might be a terrorist, therefore we'll need a wiretap and access to all of his emails."

It should be noted, however, that these statistics are an attempt to measure the results of what are, typically, informal communications between the branches.

So they're talking out of court about the decision and in a completely non-adversarial proceeding. Wouldn't that basically be grounds for instant dismissal of any court order in any other court?

I don't get the "non adversarial" bit. These court orders are in the league of warrants and warrants aren't adversarial as far as I know. I'm not a lawyer, but it seems to me that getting upset on this technical point is coming close tilting at windmills when there are real giants to hunt. Namely:the NSA has repeatedly obfuscated and told us 'less than correct' information (if not flat out lied) about its scope of collection and who has access to what.

The idea is that if they insist on keeping the rulings, and the case law that stems from them a secret, and currently all but unchallengeable, there should at least be dissenting voice in the room. Unfortunately, current proposals are things like letting the president decide who should argue against what the government is asking for, which is a complete conflict of interest.

I read this and imagine the corrections as something like:"Hey Bob, got a couple changes on the last request you put in. First, we might want to dial back from the Kristallnacht II name, maybe call this operation Patriot Scavenger Hunt Night. I'm also thinking the part about 'drag any dissenters into the street and shoot them in the mouth' could be amended to something more like 'quietly tazer potential terrorists and process them in a mandatory rehabilitation center off-shore'. Other than that I think we can give this a green light. Oh, and don't forget we have a tee time with Chris and Joe at 6am Saturday, don't be late this time."

Judge Walton's assertions are meaningless, especially in light of the fact that the court admits it has no ability to monitor or assure compliance with its orders. It has become more than clear that the NSA does as it wishes - it either persuades the FISC to approve its plans, or interprets whatever they approve in a way that authorizes those plans. The NSA acts with total impunity, beyond meaningful oversight of any court, individual, or government agency.

If these institutions want to regain their lost credibility, a way needs to be figured out for oversight from someone trusted by the general public. Nothing like that exists today, and I can't even envision how such an agency could both obtain government approval for its activities, and convince me that their findings are reliable and accurate. At this point, I'm in agreement with those who say that we can only get meaningful reform by disbanding the NSA and starting fresh.

The idea is that if they insist on keeping the rulings, and the case law that stems from them a secret, and currently all but unchallengeable, there should at least be dissenting voice in the room. Unfortunately, current proposals are things like letting the president decide who should argue against what the government is asking for, which is a complete conflict of interest.

For the case law and precedents, good point.

I think though some of the comments over the last few months that I've seen are referring to the court orders themselves being granted in a non-adversarial environment and I don't get those arguments at all. For many crimes, if you granted a warrant to search for evidence and the subject knows it's coming, you're not going to get any evidence.

Again, I'm not a fan of what's going on, but we need to understand what's reasonable and normal if we're going to understand what is outrageous, offensive, likely illegal, certainly unconstitutional, and flat out tyrannical.

It should be noted, however, that these statistics are an attempt to measure the results of what are, typically, informal communications between the branches.

So they're talking out of court about the decision and in a completely non-adversarial proceeding. Wouldn't that basically be grounds for instant dismissal of any court order in any other court?

I don't get the "non adversarial" bit. These court orders are in the league of warrants and warrants aren't adversarial as far as I know. I'm not a lawyer, but it seems to me that getting upset on this technical point is coming close tilting at windmills when there are real giants to hunt. Namely:the NSA has repeatedly obfuscated and told us 'less than correct' information (if not flat out lied) about its scope of collection and who has access to what.

If the police come to search your house with a warrant, you might be able to take legal action to stop them before the search (but probably not). However, you can watch them without interfering, and you can go to court to protest the legality of the search after the fact. If anything is discovered to be out of line, evidence gained illegally will be thrown out. You'll see and be able to respond to every part of the process yourself, with your lawyer, in public. That's a far cry from anything we've seen involving the NSA, where if there's a warrant, that fact and the warrant itself will probably be withheld as a "government secret."

I don't get the "non adversarial" bit. These court orders are in the league of warrants and warrants aren't adversarial as far as I know. I'm not a lawyer, but it seems to me that getting upset on this technical point is coming close tilting at windmills when there are real giants to hunt. Namely:the NSA has repeatedly obfuscated and told us 'less than correct' information (if not flat out lied) about its scope of collection and who has access to what.

Warrants are adversarial in that the police/DA must show probable cause that the warrant will produce evidence useful in prosecution of a suspect. Judges aren't allowed to rubber-stamp warrants, and evidence gathered via an improperly granted warrant can be challenged and thrown out after the fact. However, since most of the rulings at the FISA court are classified, there is no due process in whether a search executed was done in accordance with the law or not, nor any record of what, if any evidence was gathered, and against whom, which is a direct violation of the Constitution's guarantees of due process and safety from unreasonable search and seizure, which the NSA has undoubtedly been carrying out the "search" portion of.

I'm trying to come up with a way that a secret court can in any way be construed as a legitimate component of a functioning democracy.

So far I haven't found any.

Any nation will have it's secrets. It will have things that must be kept secret from others and to keep it secret it has to dramatically limit who has access to those secrets.

If you think there is no justification for a court keeping rulings secret at least until the information provided to the court no longer poses a danger, then you are living in a make-believe world that has little to do with reality.

Most courts will seal at least some information from time to time for a variety of reasons. The FISA court is really only different in the amount of things kept secret (almost everything in the case of FISA).

Oh and by the way the US is a Republic, not a pure democracy. I'm not sure how you would define a "functioning democracy", but I suspect it wouldn't function and doesn't actually exist in reality.

I'm trying to come up with a way that a secret court can in any way be construed as a legitimate component of a functioning democracy.

So far I haven't found any.

If you think there is no justification for a court keeping rulings secret at least until the information provided to the court no longer poses a danger, then you are living in a make-believe world that has little to do with reality.

That's a nice straw man you've constructed. No reasonable person is saying that NOTHING can EVER be secret. But the situation we've got now results in EVERYTHING ALWAYS being secret, including the interpretations of the laws themselves. That is absurd.

Any nation will have it's secrets. It will have things that must be kept secret from others and to keep it secret it has to dramatically limit who has access to those secrets.

That's fine if the secret being kept is, "The nuclear launch code for Wednesday is 'fruit basket.'"

That's fine if the secret being kept is, "We need to keep an eye on John Suspectedterrorist's email for 30 days because we think he might be part of a plot to blow up a power plant based on the following credible evidence."

The problem here is that the secret is, "We spy on everybody all the time in violation of their civil rights at enormous expense not justified by the marginal advantage we gain from doing so."

It's also a problem that this secret is so secret the NSA apparently lies to its Congressional oversight committee about it.

Any nation will have it's secrets. It will have things that must be kept secret from others and to keep it secret it has to dramatically limit who has access to those secrets.

If you think there is no justification for a court keeping rulings secret at least until the information provided to the court no longer poses a danger, then you are living in a make-believe world that has little to do with reality.

Most courts will seal at least some information from time to time for a variety of reasons. The FISA court is really only different in the amount of things kept secret (almost everything in the case of FISA).

It's a recent turn of events to have ANY information from FISC. It's a complete mockery of justice.

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Oh and by the way the US is a Republic, not a pure democracy. I'm not sure how you would define a "functioning democracy", but I suspect it wouldn't function and doesn't actually exist in reality.

Oh great, this bullshit argument again. When someone says 'democracy', they almost always mean representative democracy. The US is a representative constitutional federal democracy and a republic. If you are going to be ultra-pedantic, at least be correct.

It should be noted, however, that these statistics are an attempt to measure the results of what are, typically, informal communications between the branches.

So they're talking out of court about the decision and in a completely non-adversarial proceeding. Wouldn't that basically be grounds for instant dismissal of any court order in any other court?

I don't get the "non adversarial" bit. These court orders are in the league of warrants and warrants aren't adversarial as far as I know. I'm not a lawyer, but it seems to me that getting upset on this technical point is coming close tilting at windmills when there are real giants to hunt. Namely:the NSA has repeatedly obfuscated and told us 'less than correct' information (if not flat out lied) about its scope of collection and who has access to what.

The idea is that if they insist on keeping the rulings, and the case law that stems from them a secret, and currently all but unchallengeable, there should at least be dissenting voice in the room. Unfortunately, current proposals are things like letting the president decide who should argue against what the government is asking for, which is a complete conflict of interest.

I'm not so sure the non-adversarial environment isn't a creation of the media coverage of something they have little information about.

It sounds like most all requests are eventually approved, but a significant number are not approved in their original form. This is also an environment where the vast majority of requests are going to be similar to something they have requested before and if they are remotely competent and the judges are remotely consistent they already have a very good idea of what will get approved, and what won't. Pushing the limits of acceptable would most likely result in a request needing to be modified rather than completely rejected. It is what you would expect from professional, competent group of people.

The general courts deal with law enforcement and prosecutors that are less competent and less professional. They also have a much less structured environment and in many ways receive less oversight because there is more internal oversight over classified issues, and while the public has more access to cases about common crimes, the general public really doesn't care that much about most crimes and how they were handled. They also have judges that are less competent and consistent in their rulings.

During the three month period from July 1, 2013 through September 30, 2013 we have observed that 24.4% of matters submitted ultimately involved substantial changes to the information provided by the government or to the authorities granted as a result of Court inquiry or action.

"Oh, damn! You're right your honor. If this ever leaked out to the public, we'd get grilled on how illegal this evidence gathering operation actually was! We'll doctor this right up in a jiffy for you..."

I'm not so sure the non-adversarial environment isn't a creation of the media coverage of something they have little information about.

It sounds like most all requests are eventually approved, but a significant number are not approved in their original form. This is also an environment where the vast majority of requests are going to be similar to something they have requested before and if they are remotely competent and the judges are remotely consistent they already have a very good idea of what will get approved, and what won't. Pushing the limits of acceptable would most likely result in a request needing to be modified rather than completely rejected. It is what you would expect from professional, competent group of people.

That's all well and good, but we aren't talking about a professional, competent group of people. We are talking about the NSA.

Any nation will have it's secrets. It will have things that must be kept secret from others and to keep it secret it has to dramatically limit who has access to those secrets.

If you think there is no justification for a court keeping rulings secret at least until the information provided to the court no longer poses a danger, then you are living in a make-believe world that has little to do with reality.

Most courts will seal at least some information from time to time for a variety of reasons. The FISA court is really only different in the amount of things kept secret (almost everything in the case of FISA).

It's a recent turn of events to have ANY information from FISC. It's a complete mockery of justice.

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Oh and by the way the US is a Republic, not a pure democracy. I'm not sure how you would define a "functioning democracy", but I suspect it wouldn't function and doesn't actually exist in reality.

Oh great, this bullshit argument again. When someone says 'democracy', they almost always mean representative democracy. The US is a representative constitutional federal democracy and a republic. If you are going to be ultra-pedantic, at least be correct.

Yes I could have been less of an ass in how I said the last part.

However since we have a representative form of government, and our government must keep some things from general knowledge, we have to rely on our representatives to provide oversight.

The Justice Department oversees the FISA court. Congress has authority and a responsibility to provide oversight. They are our representatives and should be the ones looking at how the FISA court operates and making sure our rights are being protected.

So far what I've mostly seen out of congress is pointing fingers at the court over either statistics that are mostly meaningless without details, and about approvals that aren't publicly popular, but aren't actually illegal either.

We lost our constitutional right to privacy in the data third parties collect with the Supreme Court case Smith v Maryland, and the pen register act didn't really place significant legal restrictions on the gathering of third party data. The problem isn't that the FISA court is making rulings that are contrary to the law, or contrary to the Constitution as it has been interpreted by the Supreme Court. The problem is that the current laws don't protect us, and the Supreme Court made an insane ruling that once we voluntarily hand over metadata to companies not only do we no longer have a Constitutional right to privacy, the companies possessing that data have no right or legal authority to deny the government access to it.

Any nation will have it's secrets. It will have things that must be kept secret from others and to keep it secret it has to dramatically limit who has access to those secrets.

That's fine if the secret being kept is, "The nuclear launch code for Wednesday is 'fruit basket.'"

That's fine if the secret being kept is, "We need to keep an eye on John Suspectedterrorist's email for 30 days because we think he might be part of a plot to blow up a power plant based on the following credible evidence."

The problem here is that the secret is, "We spy on everybody all the time in violation of their civil rights at enormous expense not justified by the marginal advantage we gain from doing so."

It's also a problem that this secret is so secret the NSA apparently lies to its Congressional oversight committee about it.

Since we have a representative form of government it is our representatives in Congress that are supposed to be monitoring the FISA court and making sue they aren't violating everyone's civil rights. They, and not public disclosure of all the rulings, are supposed to provide oversight.

The second issue is that in Smith v Maryland the Supreme Court ruled that we have no civil rights regarding metadata that we have voluntarily provided to third parties. Since the FISA court is bound by the rulings of the Supreme Court their job is to follow that precedent. That leaves the Pen Register Act as expanded by the Patriot Act, which basically requires that the government declare the data being collected is relevant to an investigation. If they lie about it being relevant, which seems like it would be very hard to prove that they knew it wasn't relevant, they could in theory be charged with a misdemeanor. However, the evidence would still be admissible in a court of law because you don't have a Constitutional right to have that data kept from the government.

That's how pen registers have worked for decades. Congress refuses to reign the government in, and the Supreme Court hasn't revisited the issue to my knowledge.

I'm trying to come up with a way that a secret court can in any way be construed as a legitimate component of a functioning democracy.

So far I haven't found any.

Any nation will have it's secrets. It will have things that must be kept secret from others and to keep it secret it has to dramatically limit who has access to those secrets.

If you think there is no justification for a court keeping rulings secret at least until the information provided to the court no longer poses a danger, then you are living in a make-believe world that has little to do with reality.

Most courts will seal at least some information from time to time for a variety of reasons. The FISA court is really only different in the amount of things kept secret (almost everything in the case of FISA).

Oh and by the way the US is a Republic, not a pure democracy. I'm not sure how you would define a "functioning democracy", but I suspect it wouldn't function and doesn't actually exist in reality.

There is a huge fuckin' gulf between keeping rulings secret and keeping the entire interpretation of the law secret, and if you can't understand why that is I suggest you don't bother spouting nonsense in these threads. It does not reflect well on you.

However since we have a representative form of government, and our government must keep some things from general knowledge, we have to rely on our representatives to provide oversight.

We have to keep some things from general knowledge. The number of things in that category is several orders of magnitude smaller than what we currently have, and it would be even smaller if we quit dicking around in the world stage (which we do in large part because it's so easy to keep operations classified)

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The Justice Department oversees the FISA court. Congress has authority and a responsibility to provide oversight. They are our representatives and should be the ones looking at how the FISA court operates and making sure our rights are being protected.

So far what I've mostly seen out of congress is pointing fingers at the court over either statistics that are mostly meaningless without details, and about approvals that aren't publicly popular, but aren't actually illegal either.

Yes, Congress needs to get their shit together. That doesn't let FISC off the hook. They've authorized far more than they should have, and they haven't been anything other than a rubber stamp.

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We lost our constitutional right to privacy in the data third parties collect with the Supreme Court case Smith v Maryland, and the pen register act didn't really place significant legal restrictions on the gathering of third party data. The problem isn't that the FISA court is making rulings that are contrary to the law, or contrary to the Constitution as it has been interpreted by the Supreme Court. The problem is that the current laws don't protect us, and the Supreme Court made an insane ruling that once we voluntarily hand over metadata to companies not only do we no longer have a Constitutional right to privacy, the companies possessing that data have no right or legal authority to deny the government access to it.

I will agree that SCOTUS dropped the ball in Smith v. Maryland, but I think the interpretations being made are far too sweeping. Smith v. Maryland said there was no 'reasonable expectation of privacy' in phone records at the time. That was not entirely untrue at the time, because we had no privacy laws.

Since we have a representative form of government it is our representatives in Congress that are supposed to be monitoring the FISA court and making sue they aren't violating everyone's civil rights. They, and not public disclosure of all the rulings, are supposed to provide oversight.

Again, it's so secret that the NSA lies to Congress about what they're up to, or simply doesn't tell them.

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If they lie about it being relevant,

They don't have to lie about it being relevant. They secretly redefined the word "relevant." The Supreme Court didn't do (or authorize) that.

And nothing in Smith v. Maryland gives the government the wholesale authority to retain copies of all Internet traffic, including the content of (not just information about) private communications.

Which, if you're paying attention, is what they're doing. This ceased being about "metadata" a long time ago.

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Congress refuses to reign the government in, and the Supreme Court hasn't revisited the issue to my knowledge.

Congress has been lied to, and forced outside their competence area. (See other articles about how the only people on the committee can't so much as read about the program in a way conducive to reviewing it, or even ask experts for help or advice to understand what they're being told.)

Of course the Supreme Court hasn't revisited this. All the cases got dismissed because since it's a secret spying program you can't prove you're being spied on. The only way to find out you have "standing" is to wake up in a dark hole in Cuba, and at that point the government has already decided you have no civil rights at all, much less standing to sue.

I'm trying to come up with a way that a secret court can in any way be construed as a legitimate component of a functioning democracy.

So far I haven't found any.

Any nation will have it's secrets. It will have things that must be kept secret from others and to keep it secret it has to dramatically limit who has access to those secrets.

If you think there is no justification for a court keeping rulings secret at least until the information provided to the court no longer poses a danger, then you are living in a make-believe world that has little to do with reality.

Most courts will seal at least some information from time to time for a variety of reasons. The FISA court is really only different in the amount of things kept secret (almost everything in the case of FISA).

Oh and by the way the US is a Republic, not a pure democracy. I'm not sure how you would define a "functioning democracy", but I suspect it wouldn't function and doesn't actually exist in reality.

With all due respect, there is no reason why the government should have to 'have secrets' from the American people for any longer than say.... 1 year, tops. There is no way that X or Y would be germane (even most infiltration of terrorist organizations are over in a year tops) anymore after that time period.

As to the United States being a Republic, correct..... however, it is past time to think about making us a Constitutional Democracy, where the people vote on all laws. With the internet, it is well past the point that we could do that.

Judges: You've chosen to willfully misinterpret the intent of a law. Deciding that this is precedent and re-applying it every time material is presented to you is a rubber stamp. You're a rubber stamp. You're the worst kind of judge there is: the sort that doesn't think critically about what he/she is doing, the sort that can't see the forest for all the familiar trees that surround you. You've failed the American people and your duty to the Constitution. You should be ashamed.

With all due respect, there is no reason why the government should have to 'have secrets' from the American people for any longer than say.... 1 year, tops. There is no way that X or Y would be germane (even most infiltration of terrorist organizations are over in a year tops) anymore after that time period.

I would say there are exceptions, such as nuclear weapon schematics and such, but they would be incredibly rare. However, the potential threat to informants, agents, etc. is due mostly to our engagement in foreign affairs in which we have no legitimate business.